I have enjoyed reading this Parliamentary report, which says little that is new and contains recommendations that are likely to be
ignored duly noted with care and concern by the Government. There may well
be one significant recommendation that the Government will strongly support
though – which is to ignore a recommendation in the Leveson Report that the ICO be reconstituted it as an Information Commission, led by a
Board of Commissioners with suitably broad expertise. Evidently, the current
model is still fit for purpose – although it ought to be accountable directly
to (and funded by) Parliament, rather than be funded by the Ministry of
Two key issues struck me as I read it.
First, funding for the ICO’s Freedom of Information work has been slashed with severity that would shame even Quentin Tarantino. That budget has been cut by 23% from £5.5 million in 2011–12 to £4.25 million in 2012–13. In line with public spending targets, there will be a further cut of 6% in 2013–14, and the Ministry of Justice has asked for a business case showing how the work would be impacted by a further 5% cut in that year.
The message to those who fancy exercising their FOI rights in future is that they should be prepared to dig deep into their own pockets to fund the civil litigation that could be necessary to help enforce their statutory rights. The ICO is unlikely to be able to intervene to a significant extent on their behalf. Public authorities are hardly likely to be able to fund many FOI posts, either. The message to public authorities who fancy ignoring an FOI request in future is that such temptation may be even harder to resist.
Second, the public concern at unlawful data handling practices has not been reflected by the penalties that the courts impose. Accordingly, it may not really matter if the maximum fine levels are dramatically increased – current evidence is that the actual level of fines will continue to remain at the bottom end. The reason for this is clear – the level of the fine depends on the means of the defendant, and in most cases, prosecutions are launched against people who are involved in domestic disputes and who have very few savings anyway.
Behaviours might well change, though, if Section 55 offences became “recordable offences”. These are the offences that are recorded on the Police National Computer, and where those who are prosecuted also have their fingerprints and DNA samples recorded for whatever period the police currently set. That might focus a few minds as to the severity of such offences.
The Government continues to refuse to allow custodial sentences for DPA offences because other charges are capable of being made against defendants that do permit custodial sentences to be imposed (paragraph 43). These charges include:
· Unlawful interception of communications: Regulation of Investigatory Powers Act 2000
· Unauthorised access to computer material: Computer Misuse Act 1990
· Dishonestly making a false representation: Fraud Act 2006
· Bribing another or being bribed: Bribery Act 2010
· Unauthorised access to computer material: Contrary to section 1 of the Computer Misuse Act 1990
· Unauthorised access to computer material with intent to commit another offence: Contrary to section 2 of the Computer Misuse Act 1990
· Phone hacking: Regulation of Investigatory Powers Act 2000
· Misconduct in public office: common law offence
· Inchoate and accessory offences including attempt and conspiracy
This is an interesting point, and I would love an academic to set his students the research task of identifying how these offences have been prosecuted over the past few years (should the CPS also have been able to have charged the defendant with a Section 55 offence), what penalties have been imposed and whether they really have served as an effective deterrent.
If you have not already done so, you might like to read the report this weekend.